High Court
Legal Reasoning
CriAppeal-282-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 282 OF 2002Bhagwant s/o Shamrao Shinde,Age : 45 yrs. Occ : Service,Jr. Clerk, Panchayat Samiti, Sakri,R/o- Shantiniketan Society Sec.-II,Deopur, Dhule.… AppellantVersusThe State of Maharashtra… Respondent…..Mr. Nilesh S. Ghanekar, Advocate for the Appellant.Mr. S. M. Ganachari, APP for the Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 26.02.2024Pronounced on: 01.03.2024JUDGMENT : 1.Judgment and order dated 17.05.2002 passed by learnedAdditional Sessions Judge and Special Judge Dhule in Special CaseNo. 140 of 1996 recording guilt of the present appellant for offencepunishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention ofCorruption Act, 1988 [PC Act] is assailed by filing instant appeal. CriAppeal-282-2002-2- PROSECUTION STORY IN BRIEF IS AS UNDER2.Complainant, a primary teacher had approached appellant forreleasing amount towards revised pay-scale in the backdrop ofimplementation of Chatopaddhyaya Pay Commission. According toprosecution, complainant approached accused couple of times withapplication to release revised pay-scale. However, accused demandedRs.500/- for doing the needful. Complainant had carried onlyRs.100/- and he gave the same to the accused, who accepted it andthereafter accused asked him to bring remaining amount of Rs.400/-within three days. As complainant was not willing to comply, heapproached office of Anti Corruption Bureau [ACB] on 20.03.1995and lodged complaint Exhibit 10.3.ACB authorities completed the procedure of arranging panchas,appraising them about nature of the complaint, they went through thecomplaint, pancha as well as complainant were given necessaryinstructions and demonstration of application of anthracene powderto the currency which was to be handed over on demand.Panchanama was drawn. Accordingly, around 1.45 p.m., complainantand pancha followed by raiding party, approached accused in his CriAppeal-282-2002-3- office. In presence of pancha, complainant asked accused about hiswork, but accused directed him to pay remaining amount first.Thereafter complainant gave him tainted currency which wasaccepted. Thereafter, accused was apprehended. Necessaryverification was done, currency was seized and Investigating Officerlodged complaint and after investigation, chargesheeted accused.4.On trial being conducted by learned Special Judge, Judgmentof conviction was delivered and hence the appeal.SUBMISSIONSOn behalf of the appellant:5.Learned counsel for accused would question the judgment andorder on the ground that there is improper appreciation of evidence.That prosecution had failed to establish the charges beyondreasonable doubt. According to learned counsel, in fact complainantwas not at all entitled for the benefits, there being no certification ofacquiring efficiency bar. Secondly, accused was not at all authorizedto issue revised pay-scale, rather it was entrusted to higherauthorities. Therefore, there is no question of giving assurance to do CriAppeal-282-2002-4- the work of complainant or to demand illegal gratification. He furtherpointed out that here, even complainant in deposition is ambiguousabout illegal gratification as he merely speaks of some amount beingdemanded. He further pointed out that there is no verification ofdemand made by investigating machinery. There is contradiction inthe testimony of complainant as well as pancha witness. That, whensuperior authorities had not held him entitled, there was no questionof giving any difference. That, such admissions of complainanthimself show that there was no official work with accused. There arevital admissions that powers of sanctioning revised pay-scale was withone Sonawane who was superior to accused Shinde. That, taking suchvital admissions of complainant into consideration, it is doubtfulwhether accused could demand money or illegal gratification for thework which he was not authorized to do. 6.Learned counsel further submitted that it has been the specificcase of accused that there was no demand but, for deliberateimplication, currency was thrusted in his hands. However, learnedtrial court erred in accepting only the case of prosecution andoverlooking the specific defence as well as answers given bycomplainant and pancha in cross. Consequently, it is his submissionthat there is improper appreciation and findings reached are not CriAppeal-282-2002-5- supported by sound reasons. Hence, he prays to allow the appeal bysetting aside the judgment.On behalf of the State :7.Per contra, learned APP, while supporting the judgment ofconviction, submitted that there is unshaken testimony ofcomplainant as well as pancha witness about demand and acceptance.That, sanction has been accorded upon application of mind and thereis no dispute to that extent. Illegal gratification was demanded firston 15.03.1995 and later on, demand was made for remaining amountfor making applicable the revised pay-scale to the complainant. That,evidence of complainant and independent pancha witness provesdemand as well as acceptance. All required ingredients for attractingthe charges being available, learned trial Judge has rightly convictedaccused and hence he prays to dismiss the appeal for want of merits.ANALYSIS8.Case of prosecution is that in spite of complainant’s namefinding place in the said list, he did not receive revised pay-scale andtherefore he had approached Block Development Officer Vasave who CriAppeal-282-2002-6- directed him to present accused. Evidence of PW1 complainant showsthat he had approached accused on 15.03.1995 along withapplication, upon which accused allegedly told him that his workwould be done and for that purpose, he will have to pay Rs.500/-.Rs.100/-, which was available with complainant, were accepted byaccused, further asking him to arrange for Rs.400/- within three days.Therefore, PW1 claims to have approached ACB authorities andlodged complaint Exhibit 10.9.Sum and substance of evidence of PW1 is that he hadapproached panchayat samiti for making inquiries regarding pay scalerevision and one Vasave directed him to accused. Consequentlycomplainant approached him on 15.03.1995 and told him about thepurpose of his visit. Thereafter accused allegedly told that workwould be done but for that purpose, some amount would be requiredto be paid. Accused demanded Rs.500/-. However complainant wascarrying only Rs.100/- and requested accused to accept it. Accusedfurther told that he should give remaining amount within three daysand therefore, after borrowing Rs.400/- from others, complainantapproached ACB office and gave complaint Exhibit 10. He deposedabout panchas being called, introduced to the complainant, panchasigning over the complaint, instructions being given to him as well as CriAppeal-282-2002-7- to pancha by ACB officer, about demonstration of application ofanthracene to currency which was to be paid on demand, andthereafter he and pancha approaching accused around 1.45 p.m.,again accused demanding him remaining amount and on amount i.e.tainted currency being handed over, it was accepted and raiding partyapprehended accused. Finger tips of accused had blue shining andthere was blue shining to even shirt pocket as well as his own fingers. 10.PW2 at Exhibit 12 deposed that he was directed to visit ACBoffice on 20.03.1995. He and other pancha More were briefed aboutthe nature of complaint, nature and purpose of demand, about theproposed trap and demonstration of application of anthracenepowder and instructions being given to him as well as complainant topay the amount on demand and to give signal. He deposed aboutpanchanama of this being drawn and finally he and complainantvisiting panchayat samiti office around 1.45 p.m., approachingaccused, complainant asking about his work, accused demandingremaining amount, tainted currency being paid by complainant andaccepted by accused and raiding party apprehending accused. CriAppeal-282-2002-8- 11.There is nothing in the cross of PW1 or PW2 to disbelieve theirversion. Mere suggestions given to PW1 are about his work to be inthe hands of superiors, and there to be no certificate of efficiency bar,etc. However, crucial aspect of previous receipt of Rs.100/- andraising demand of remaining amount and it being paid and accepted,has virtually remained unshaken. Accused was apprehended in hisoffice. His hands contained traces of anthracene powder which wasapplied to the tainted currency. There is no convincing explanationfor the same. Both PW1 and PW2 are lending support to each otheron all aspects of approaching accused on 20.03.1995, complainantquestioning about his work, accused raising demand of remainingamount and accepting it on payment by complainant. Therefore both,demand as well as acceptance, are cogently proved. 12.Only defence taken by the accused is of thrusting, however,evidence of complainant supported by that of independent witnessPW2, belies the said defence as there is nothing to show that amountwas deliberately thrusted. In case of thrusting, there would be nopowder to the hands of accused, because here, second pancha hadtaken out the currency from the pocket of accused. There is nosuggestion to PW2 that amount was deliberately thrusted. On the CriAppeal-282-2002-9- contrary, independent shadow pancha speaks about prior demandand thereafter acceptance. Resultantly, there is no force in thedefence about tainted currency to be forcibly thrusted in the hands orpocket. Hence, said defence cannot come to the rescue of accused.13.After completing investigation, the Investigation Officer seemsto have forwarded the same to PW3 Chief Executive Officer Bobade,who is sanctioning authority. He deposed in his evidence aboutreceiving papers from ACB office, he going through the same. Afterconsidering the papers, he has accorded sanction. Therefore, evensanction is valid. There is nothing adverse in cross of this witness. SUMMATION14.Therefore, here, there is evidence on behalf of prosecution inthe trial court regarding illegal gratification being demanded byaccused as well as amount being accepted on two occasions. As aresult, presumption comes into play in view of Section 20 of the PCAct. The same has not been successfully rebutted. Sanction accordedunder Section 19 of the PC Act is also perfectly valid and therefore nofault can be found in the appreciation at the hands of learned trialcourt. Charge being squarely proved, guilt is rightly recorded. No
Legal Reasoning
CriAppeal-282-2002-10- perversity or illegality is brought to the notice of this court in appealso as to interfere. Hence, I proceed to pass the following order:ORDERThe appeal is dismissed. [ABHAY S. WAGHWASE, J.]15.On pronouncement of this judgment, learned counsel for theappellant prays for four weeks time to surrender so as to enable himto approach the Hon’ble Apex Court.16.Learned APP strongly opposes the same.17.Considering the above request made by learned counsel for theappellant, four weeks time is granted for the appellant to surrender. [ABHAY S. WAGHWASE, J.]vre